Peggy Jones v. The City of Canton

Montgomery, AL - Peggy Jones as administrator of the Estate and Personal Representative of the of Christy Down Varden, sued the City of Canton under 42 U.S.C. 1983 claiming that the bail bonding practices and policies of the City of Canton, Alabama violated her 14th and 8th Amendment rights under the United States Constitution.



Court Docket:



01/15/2015 1 Inmate 1983 COMPLAINT against The City of Clanton ( Filing fee $ 400.00 receipt number 4602035196.), filed by Christy Dawn Varden. (Attachments: # 1 Exhibit 1, # 2 fee receipt)(djy, ) (Entered: 01/15/2015)

01/15/2015 2 MOTION for Temporary Restraining Order or in the alternative MOTION for Preliminary Injunction by Christy Dawn Varden. (Attachments: # 1 Text of Proposed Order)(djy, ) (Main Document replaced on 1/15/2015 to correct typographical error in case number only) (qc/djy, ). (Entered: 01/15/2015)



01/15/2015 3 Motion for Alec Karakatsanis to Appear Pro Hac Vice ( Filing fee $ 50.00 receipt number 4602035196.) by Christy Dawn Varden. (Attachments: # 1 certificate of good standing, # 2 Text of Proposed Order, # 3 fee receipt)(djy, ) Modified on 1/16/2015 to correct typographical error in attorney name (qc/djy, ). (Entered: 01/15/2015)



01/15/2015 4 MOTION to Certify Class by Christy Dawn Varden. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(djy, ) (Entered: 01/15/2015)



01/15/2015 5 Summons Issued as to The City of Clanton and returned to counsel for personal service on defendant. (djy, ) (Entered: 01/15/2015)

01/15/2015 MOTION for Expedited Hearing re 2 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction, by Christy Dawn Varden. (No PDF document attached to this entry; see 2 Motions.) (scn, ) (Entered: 01/20/2015)



01/16/2015 6 SUMMONS Returned Executed by Christy Dawn Varden. The City of Clanton served on 1/16/2015, answer due 2/6/2015. (Karakatsanis, Alec) (Main Document 6 replaced on 1/16/2015) (scn, ). (Entered: 01/16/2015)



01/16/2015 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Christy Dawn Varden. Corporate Disclosures due by 1/26/2015. (Attachments: # 1 Standing ORDER and sample format)(scn, ) (Entered: 01/16/2015)



01/16/2015 8 ORDER granting 3 Motion for Leave for Alec Karakatsanis to Appear Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 01/16/2015. (scn, ) (Entered: 01/16/2015)



01/16/2015 9 NOTICE by Christy Dawn Varden Notice of Release from Custody (Karakatsanis, Alec) (Entered: 01/16/2015)

01/16/2015 MOTION to Withdraw 2 MOTION for Expedited Hearing, by Christy Dawn Varden. (No PDF document attached; see 9 Notice.) (scn, ) (Entered: 01/20/2015)

01/16/2015 MOTION for a briefing schedule re 2 Motion for Preliminary Injunction, MOTION for hearing or telephone conference re 2 Motion for Preliminary Injunction, by Christy Dawn Varden. (No PDF document attached; see 9 Notice) (scn, ). (Entered: 01/20/2015)



01/20/2015 10 ORDER directing that, pursuant to the notice of release from custody (doc. no. 9 ), it is ORDERED that the motion for temporary restraining order (doc. no. 2 ) is denied as moot. Signed by Honorable Judge Myron H. Thompson on 1/20/15. (scn, ) (Entered: 01/20/2015)

01/22/2015 Set Hearings: Telephone Conference set for 1/22/2015 01:15 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 01/22/2015)



01/22/2015 11 NOTICE of Appearance by Richard Warren Kinney on behalf of The City of Clanton (Kinney, Richard) (Entered: 01/22/2015)



01/22/2015 12 NOTICE of Appearance by James Wallace Porter, II on behalf of The City of Clanton (Porter, James) (Entered: 01/22/2015)



01/22/2015 13 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to The City of Clanton. Corporate Disclosures due by 2/2/2015. (Attachments: # 1 Standing ORDER and sample format)(scn, ) (Entered: 01/22/2015)



01/22/2015 14 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 1/22/2015 (PDF available for court use only). (Recording Time 1:17 - 1:31.) (ag, ) (Entered: 01/22/2015)



01/22/2015 15 Corporate/Conflict Disclosure Statement by The City of Clanton. (Kinney, Richard) (Main Document 15 replaced with a published version on 1/23/2015) (scn, ). (Entered: 01/22/2015)



01/23/2015 16 ORDER directing as follows: (1) Plaintiff's motion for preliminary injunction (doc. no. 2 ) is set for an evidentiary hearing on February 24, 2015 at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street, Montgomery, Alabama; (2) By February 6, 2015, the defendant is to file a brief summarizing the law and the proposed facts; (3) By February 13, 2015, the plaintiff is to file a reply brief. Signed by Honorable Judge Myron H. Thompson on 01/23/2015. (Furnished to Calendar/AG) (scn, ) (Entered: 01/23/2015)



01/26/2015 17 ORDER directing as follows: (1) The motion to withdraw (doc. no. 9 ) is granted; (2) The motion for expedited hearing on motion for temporary-restraining order (doc. no. 2 ) is withdrawn; (3) The motion for hearing on motion for preliminary injunction (doc. no. 2 ) is granted. Signed by Honorable Judge Myron H. Thompson on 1/26/15. (scn, ) (Entered: 01/26/2015)



01/26/2015 18 Corporate/Conflict Disclosure Statement by Christy Dawn Varden re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (McGuire, Joseph) (Additional attachment(s) added on 1/26/2015: # 1 Corrected certificate of service) (scn, ). (Entered: 01/26/2015)



01/26/2015 19 STATUS REPORT Regarding Mediation by The City of Clanton. (Kinney, Richard) (Entered: 01/26/2015)



01/28/2015 20 NOTICE of Non-Compliance re Attorney William M Dawson, Jr.. (Attachments: # 1 Standing ORDER, # 2 Renewal Form)(scn, ) (Entered: 01/28/2015)



02/03/2015 21 MOTION for Extension of Time to File Answer/Response to 1 Inmate 1983 Complaint, by The City of Clanton. (Kinney, Richard) Modified on 2/3/2015 to terminate erroneous duplicate MOTION (scn, ). (Entered: 02/03/2015)



02/03/2015 22 ORDER directing as follows: (1) Plaintiff's motion for class certification (doc. no. 4 ) is set for an evidentiary hearing at the same time as the hearing on the motion for preliminary injunction, on February 24, 2015 at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street, Montgomery, Alabama; (2) By February 17, 2015 at 5 p.m., the defendant is to file a brief in response to the motion for class certification; (3) By February 23, 2015 at 5 p.m., the plaintiff may file a reply brief. Signed by Honorable Judge Myron H. Thompson on February 3, 2015. (scn, ) (Entered: 02/03/2015)



02/04/2015 23 TEXT ORDER granting 21 Motion for Extension of Time to and including 03/03/2015. Signed by Honorable Judge Myron H. Thompson on February 4, 2015. (No PDF document attached to this entry.) (scn, ) Modified on 2/4/2015 to reset deadline pursuant to TEXT ORDER (scn, ). (Entered: 02/04/2015)

02/04/2015 Reset ANSWER Deadlines pursuant to text order: The City of Clanton due 03/03/2015. (No PDF document attached to this entry.) (scn, ) (Entered: 02/04/2015)



02/06/2015 24 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by The City of Clanton. (Attachments: # 1 Affidavit Tinsley Affidavit with Attachments, # 2 Affidavit Ann Davis Affidavit with Attachments)(Kinney, Richard) (Entered: 02/06/2015)



02/10/2015 25 SECOND NOTICE of Non-Compliance re Attorney William M Dawson, Jr.. (Attachments: # 1 Standing ORDER, # 2 Attorney Renewal Form)(scn, ) (Entered: 02/10/2015)



02/13/2015 26 NOTICE by United States of America (Statement of Interest of the United States (Anderson, Robert) (Entered: 02/13/2015)



02/13/2015 27 Corporate/Conflict Disclosure Statement by United States of America. (Anderson, Robert) (Entered: 02/13/2015)



02/13/2015 28 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Christy Dawn Varden. (Karakatsanis, Alec) (Entered: 02/13/2015)



02/13/2015 29 ORDER directing that, because of a scheduling conflict, it is ORDERED that plaintiff's motion for preliminary injunction (doc. no. 2 ) and motion for class certification (doc. no. 4 ) are reset for an evidentiary hearing on March 16, 2015, at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street, Montgomery, Alabama. Signed by Honorable Judge Myron H. Thompson on February 13, 2015. (Furnished to Calendar/AG)(Term'd: Hearing 02/24/2015)(scn, ) (Entered: 02/13/2015)

02/13/2015 ***Attorney Robert G Anderson for United States of America added. (scn, ) (Entered: 02/13/2015)

02/13/2015 ***Attorney Winsome G. Gayle for United States of America added. (scn, ) (Entered: 02/13/2015)

02/13/2015 ***Attorney Paul Killebrew for United States of America added. (scn, ) (Entered: 02/13/2015)

02/13/2015 ***Attorney Sharon Brett for United States of America added. (scn, ) (Entered: 02/13/2015)



02/13/2015 30 NOTICE of Appearance by Lee Hall Copeland on behalf of The City of Clanton (Copeland, Lee) (Entered: 02/13/2015)



02/13/2015 31 NOTICE of Appearance by Shannon Lynn Holliday on behalf of The City of Clanton (Holliday, Shannon) (Entered: 02/13/2015)



02/17/2015 32 BRIEF/MEMORANDUM in Opposition re 4 MOTION to Certify Class filed by The City of Clanton. (Attachments: # 1 Affidavit)(Holliday, Shannon) (Entered: 02/17/2015)

02/20/2015 Set Hearings: Telephone Conference re hearing date set for 2/20/2015 09:00 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 02/20/2015)



02/20/2015 33 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 2/20/2015 (PDF available for court use only). (Recording Time 9:08 - 9:18.) (ag, ) (Entered: 02/20/2015)



02/20/2015 35 TEXT ORDER RESETTING Evidentiary Hearing re: 2 MOTION for Preliminary Injunction and 4 MOTION to Certify Class from 3/16/2015 @ 10:00 am to 3/13/2015 @ 10:00 AM before Honorable Judge Myron H. Thompson, in Courtroom 2FMJ, Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street, Montgomery, Alabama. Signed by Honorable Judge Myron H. Thompson on 2/20/15. Furnished to calendar group & AG. (NO PDF document attached to this notice).(djy, ). (Entered: 02/20/2015)



02/23/2015 34 REPLY to Response to Motion re 4 MOTION to Certify Class filed by Christy Dawn Varden. (Karakatsanis, Alec) (Entered: 02/23/2015)



03/03/2015 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by The City of Clanton. (Kinney, Richard) (Entered: 03/03/2015)



"COMES NOW Defendant, the City of Clanton, Alabama, and moves this Court to Dismiss the Plaintiff’s Complaint in this case, averring as follows:

Introduction1

The Plaintiff’s Complaint grossly misrepresents facts regarding arrests of criminal defendants for charges arising within the jurisdiction of the Clanton Municipal Court. For example, most people arrested by the City of Clanton, for charges ranging anywhere from Driving Under the Influence of Drugs or Alcohol to theft of property2, do not obtain their release “almost immediately upon payment of $500 cash.” The placement of security with the Court in order to reasonably

1 The City of Clanton, in addition to the arguments in favor of dismissal of the Complaint in this case contained herein, also adopts all of the arguments made in the previously filed Response to Plaintiff’s Motion for a Preliminary Injunction [Doc. 28] and the City’s Brief in Opposition to Class Certification [Doc. 32].

2 The Plaintiff would characterize these offenses as “minor misdemeanor offense[s].” Doc. 1, p. 4. They characterize them this way despite that, according to the Center for Disease Control and Prevention, “[e]very day, almost 30 people in the United States die in motor vehicle crashes that involve an alcohol-impaired driver. This amounts to one death every 51 minutes.” http://www.cdc.gov/Motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 1 of 27

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assure the criminal defendant’s future appearance may be in the form of cash, commercial surety bond, or the signature bond of a property owner.3 Therefore, most people obtain their release by hiring a commercial bonding company to post their bail, or by having a friend or relative that owns property sign for the person’s release. Ms. Varden has not alleged that she was denied the opportunity to make bail on the charges pending against her according to any of the three options provided by the Clanton Municipal Court.

The Defendant has provided relevant factual background in this case in its Response to the Plaintiff’s Motion for a Preliminary Injunction. Doc. 24, p. 1-4. It is important to note again, though, that the Plaintiff was arrested on four criminal charges for Clanton municipal violations (theft of property, resisting arrest, disorderly conduct and possession of drug paraphernalia), and that she was also charged by Chilton County with two counts of assault on Sheriff’s Deputies. See Doc. 24-2. It is also important to note that Ms. Varden obtained her release on charges filed in Chilton County District Court by having a property owner sign a bond after she had already been released from custody on the charges pending in the Clanton Municipal Court, i.e. through one of the three manners for obtaining bail that was indisputably available to her previously. Id. Suffice it to say for purposes of this Motion to Dismiss, however, that the Plaintiff, through the filing

3 The Parties do not dispute the availability of these three options (cash bond, commercial surety bond, or property bond) have been afforded to criminal defendants by the Clanton Municipal Court in order to obtain their pretrial release. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 2 of 27

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of her Class Action Complaint [Doc. 1], attempts to challenge the application of monetary bail upon persons too indigent to afford to even hire a commercial bail bonding company in order to obtain their release. See Doc 1, p. 4, n. 4. The Complaint makes the following three Claims for Relief:

Count One: “Defendant City of Clanton Violates Plaintiff’s Rights By Jailing Her Because She Cannot Afford A Cash Payment Prior to a First Court Appearance”

Count Two: “Defendant City of Clanton Violates Plaintiff’s Rights by Imprisoning Her After Arrest Based on a Generic Non-Individualized Monetary Bail”

Count Three: “Defendant City of Clanton’s Closure of the Courtroom for all Hearings, Including Arraignments, Pleas, and Trials, Violates the First Amendment”

Presumably, although nowhere explicitly stated, the first two Counts recited above are largely based upon claims of Equal Protection and Due Process violations under the Fourteenth Amendment, and excessive bail violations under the Eighth Amendment. The third Count, quite obviously, rests on claims of First Amendment violations. For the various reasons asserted below, all such claims are due to be dismissed.

Claims brought Pursuant to 42 U.S.C. § 1983 are Due to be Dismissed

Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). The first step in any such claim is to Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 3 of 27

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identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394, (1989); Baker v. McCollan, 443 U.S., at 140. The Plaintiff has not specifically stated upon what Constitutional or federal right she has brought her claims, nor how specifically the right was violated. Based upon the allegations contained in the Complaint, though, it would appear that she implicates the Eighth and Fourteenth Amendments to the U.S. Constitution. See Doc. 1, p. 12.

The Plaintiff has only sued the City of Clanton in this case. However, municipalities may not be sued pursuant to § 1983 for claims based on respondeat superior, i.e. injuries inflicted by their officers, agents or employees. Monell v. New York Department of Social Services, 436 U.S. 658, 694-95 (1978). Rather, municipalities may only be sued under § 1983 where the city or town has a policy or custom causing the injury of which a plaintiff is complaining. Id. Only if the plaintiff shows that injury resulted from a “permanent and well settled” practice may liability attach for injuries resulting from that practice. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). “[A] plaintiff seeking to impose liability on a municipality under § 1983 [must] identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997). “A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.... A custom is a practice that is so settled and permanent Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 4 of 27

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that it takes on the force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.1997).

The “policy” in this case that the Plaintiff alleges violated her constitutional rights, though, was not created or adopted by the City of Clanton, but rather the Clanton Municipal Court. Doc 24-1. The Clanton Municipal Court, though, is governed not by the City of Clanton, but pursuant to the Code of Alabama. See Ala. Code §§ 12-14-1, et seq. The Alabama Supreme Court, not the municipality, provides the rules for administration of the municipal court administrative agency. § 12–14–52. Furthermore, the Alabama Constitution, Art. VI, § 145 specifically prescribes the jurisdiction of municipal courts and the minimum qualifications of the judges presiding over them. The City of Clanton “can never be liable under § 1983 for the acts of those [officials] whom the local government has no authority to control.” Grech v. Clayton County, Ga., 335 F.3d 1326, 1331 (11th Cir.2003) (quoting Turquitt v. Jefferson County, 137 F.3d 1285, 1292 (11th Cir.1998)). Because the City of Clanton has no control over the over the acts of those persons comprising the Clanton Municipal Court, all claims against it and brought pursuant to 42 U.S.C. § 1983 are due to be dismissed.4

Plaintiff Varden has not Named the Proper Party Defendant

4 For these same reasons, i.e. that the City of Clanton has no control over the Clanton Municipal Court, the Plaintiff’s claims against the City of Clanton due to the Clanton Municipal Court’s procedures with regard to supposedly closing its Court to the public are due to be dismissed. The dismissal of the Plaintiff’s First Amendment claims will be discussed in greater depth infra. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 5 of 27

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Along the same lines that her claims brought under 42 U.S.C. § 1983 fail, so too is the Complaint due to be dismissed for failing to name the proper party as a defendant. Again, the policy Plaintiff Varden seeks to attack is not one over which the City of Clanton has control. The Clanton Municipal Court judge is the person charged by law with setting bail and pretrial terms, not the City, and the Court created the bond schedule at issue here. See Ala. Code Sec. 12-14-5. The City has no control over the bond schedule or its application to pretrial detainees.

The municipal courts of the State of Alabama are courts of the unified judicial system of Alabama. While municipalities can choose to fund a municipal court (as opposed to sending their cases to the local district court judges) and can appoint judges, once that choice is made and those judges are appointed, the municipality and its officials have no control, nor should they have, over the actions of those judges. Municipal judges must be independent. They must follow state law and comply with state procedural and court administrative rules. They fall under the auspices of State Administrative Office of Courts and are subject to the requirements set out in the Alabama Canons of Judicial Ethics. See Doc 24, n. 4. In fact, it would be patently inappropriate for a city mayor or prosecutor, to have control of any kind over the nature of the Court’s orders or the manner in which a municipal judge rules. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 6 of 27

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Alabama Code Sec. 12-14-5 explicitly charges these independent municipal judges with authority over setting bail and appearance bonds:

Municipal judges shall admit to bail any person charged with violation of any municipal ordinance by requiring an appearance bond, with good security, to be approved by the respective municipal judges or their designees, in an amount not to exceed $1,000.00, and may, in their discretion, admit to bail such person on a personal recognizance bond, such bonds to be conditioned on the appearance of such person before the judge on a day named therein to answer the charges preferred against him. The municipal judge may waive an appearance bond upon satisfactory showing that the defendant is indigent or otherwise unable to make bond.

As established previously, the bail schedule in this case was the product of the municipal court judge’s action. See Doc. 24-1. Neither the City nor its police officers should be liable for following an order of a judge who is an arm of the state court system. See, e.g., Woods v. City of Michigan, 940 F.2d 275, 285 et seq. (7th Cir. 1991).

Of course, the Plaintiff’s rationale for suing the City of Clanton is abundantly clear: it would be contrary to the dictates of § 1983 for this Court to enter an injunction against the Clanton Municipal Court or the judge himself. Section 1983 precludes this Court from entering an injunction against a judicial officer acting in his judicial capacity. 42 U.S.C. § 1983 (“in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 7 of 27

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violated or declaratory relief was unavailable.”). It would also be contrary to due process as he is not sued in this proceeding.

Because the proper party is not before the Court and because the relief sought – control over the setting of bail by the Clanton Municipal Judge is not available from the City – Ms. Varden’s claims against the City of Clanton are due to be dismissed.

Equal Protection Claims are Due to be Dismissed

In addition to failing to bring proper claims against the City of Clanton, the Plaintiff’s claims are also due to be dismissed for failing to state a claim upon which relief can be granted. “To establish an equal protection violation, a plaintiff must show that the state treated him [or her] disparately from other similarly situated persons and that the disparate treatment burdens a fundamental right or is based upon membership in a suspect class.” Williams v. Jefferson County, Ala., 482 Fed.Appx. 480, 482 (11th Cir. 2012)(citing DeYoung v. Owens, 646 F.3d 1319, 1327 (11th Cir. 2011). The City of Clanton’s treatment here, though, was simply not disparate, but rather quite the opposite. It required a bond of $500 for every arrestee, except for every DUI arrestee, whereupon it required a bond of $1,000. The Plaintiff’s Complaint very specifically alleges that the City of Clanton “divorces the post-arrest, pretrial release determination from any individualized factors.” Doc. 1, p. 12 (emphasis added). Thus, the Plaintiff does not allege that Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 8 of 27

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the “bail schedule” was applied disparately, but rather that it was not applied disparately, i.e. that it was based upon necessarily unique and differing criteria. Any and all Equal Protection claims in the Complaint are due to be dismissed on this ground alone.

All claims for Equal Protection violations are also due to be dismissed because the Plaintiff has failed to state upon what basis an equal protection violation occurred. Ms. Varden has plainly stated that she “is indigent.” Doc 1, p. 3. She has also stated that she falls into a category of persons “who are too poor even to find anyone to pay the cash bond for them.” Doc. 1, p. 5.5 However, indigent persons, on that single basis, have never been held to be members of a suspect class. Harris v. McRae, 448 U.S. 297, 323 (1980) (noting that poverty is not a suspect classification); Riviera v. Allen, 144 F.3d 719, 727 (11th Cir. 1998)(“indigents [not] suspect class”); Driggers v. Cruz, 740 F.3d 333, 337 (5th Cir. 2014)(holding that “an individual’s indigence does not make that individual a member of a suspect class for equal protection purposes”); Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3rd Cir. 2001)(“ Neither prisoners nor indigents are suspect classes”); Murray v. Dosal, 150 F.3d 814, 818 (8th Cir. 1998)(stating that “[n]either prisoners nor indigents constitute a suspect class”);

5 It must not be overlooked that a cash bond is only one of three methods for a person to obtain bail pursuant to the previously used schedule by the Clanton Municipal Court. It is unclear, though, how a person’s indigency can cause her be too poor to find someone else who could sign for her release. Again, she did exactly this in order to obtain her release on charges arising within the jurisdiction of the Chilton County District Court. See Doc. 24, p. 2, n. 1; Doc. 24-1 and attachments. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 9 of 27

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Chestnut v. Magnusson, 942 F.2d 820, 824 (1st Cir. 1991)(holding that “[t]he indigency that may lead to an inability to post bail does not suffice to create a class calling for strict scrutiny”); Tucker v. Branker, 142 F.3d 1294, 1299 (D.C. Cir. 1998); Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997)(“Nor is indigency a suspect classification”); Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999).

Neither has the Plaintiff stated the City of Clanton violated a fundamental right. While she has alluded to a “fundamental constitutional liberty interest in freedom from physical confinement” [Doc. 1, p. 12, n. 11], any such liberty interest would be governed in this case by her right to be free from unreasonable searches and seizures under the Fourth Amendment.6 The lawfulness of her arrest under the Fourth Amendment, though, has nowhere been contested by the Plaintiff.

What she claims is that she was effectively denied bail by the Clanton Municipal Court because she could not afford any of the three options available to her, despite doing so on Chilton County’s charges. See n.5, supra. However, pretrial release on bond has not been declared a “fundamental right” and would therefore not implicate the Fourteenth Amendment’s Equal Protection Clause.7, 8

6 Very shortly after Ms. Varden’s arrest, the Clanton Municipal Court magistrate found probable cause for the City’s Police Officer, Justin Beane, to have arrested the Plaintiff on charges of theft of property third, resisting arrest, disorderly conduct, and possession of drug paraphernalia. Quite clearly, then, her seizure or “physical confinement” was not unreasonable under the Fourth Amendment. This fact is so salient because the Plaintiff’s claims in this case completely fail to account for the undisputed fact that a City of Clanton police officer had probable cause to arrest the Plaintiff for her criminal behavior, justifying government intrusion on her liberty interests. “[A]n arrest without probable cause violates an individual’s constitutional protected liberty interest.” Jones-Bolding v. Garrett, 2013 WL 2450720, at *2 (N.D. Ala. May 24, 2013) (citing Marx v. Gumbinner, 950 F.2d 1503, 1505–06 (11th Cir.1990)).

7 As of 2006, “the Supreme Court [had] characterized the following, non-textual liberty interests as ‘fundamental’ and, as such, rights that should prevail if in conflict with governmental authority or other, less valued, liberties: Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 10 of 27

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Rather, the plaintiff’s claims should be analyzed under the Eighth Amendment’s prohibition on excessive bail. “Since an indigent can never post monetary bail in any amount, due process or equal protection considerations based on the ability of the indigent to fund the bail would destroy the entire concept of monetary bail. Excessiveness [under the Eighth Amendment], the only constitutionally articulated guide, should be the measure used.” Pugh v. Rainwater, 572 F.2d 1053, 1069 (5th Cir. 1978)(Clark, C.J., concurring). The Plaintiff’s claims for Equal Protection violations are therefore due to be dismissed.

The Plaintiff’s Eighth Amendment Claims are Due to be Dismissed

The U.S. Supreme Court has demonstrated that there is no absolute right to bail. U.S. v. Salerno, 481 U.S. 739, 753 (1987). Rather, the Eighth Amendment states that “[e]xcessive bail shall not be required,” and imposes a limitation on bail only where it has been determined that the amount of bail set for a particular criminal charge exceeds that “necessary to ensure the arrestee’s presence at trial.” Salerno, 481 at 753. However, “a bail setting is not constitutionally excessive

(i) the right to marry; (ii) the right to procreate; (iii) the right to purchase and use contraceptives; (iv ) the qualified right to an abortion; (v) the right to custody of one's children; (vi) the right to keep a family together; (vii) the right of parents to direct the education and upbringing of their children; (viii) the right to marital privacy; (ix) the right to bodily integrity; (x ) the right to refuse unwanted, lifesaving, medical treatment;30 (xi ) the right to travel within the United States; (xii) the right to vote; (xiii) the qualified right to control the dissemination of private information;(xiv) the right of all persons to equal access to the courts; and … (xv) the right of adults to engage in private, consensual, non-commercial, sexual activity common to a homosexual lifestyle.” Williams v. King, 420 F.Supp.2d 1224, 1229-30 (N.D. Ala. 2006). No fundamental right to bail has since been added to this list.

8 Furthermore, the Clanton Municipal Court imposes bail requirements to promote its “compelling interest in assuring the presence at trial of persons charged with a crime.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978). Thus, the use of a bail scheduled would be subject to strict scrutiny. See Reno v. Flores, 507 U.S. 292, 302 (1993). Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 11 of 27

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merely because a defendant is financially unable to satisfy the requirement.” U.S. v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988); see also United States v. Jessup, 757 F.2d 378, 388-89 (1st Cir. 1985)(holding that if a defendant cannot afford bail and must be detained pending trial, it is “not because he cannot raise the money, but because without the money the risk of flight is too great”). Therefore, simply because Plaintiff Varden claims she could not afford to make bail on the criminal charges pending against her, this does not mean that the bail set was necessarily excessive under the Eighth Amendment.

When the Clanton Municipal Court instituted the use of the bail schedule, it did so not to procure the incarceration of pretrial detainees through the implementation of excessive bail, but to reasonably assure the defendant’s presence at trial. A “bond schedule represents an assessment of what bail amount would ensure the appearance of the average defendant facing such a charge. The schedules are therefore aimed at assuring the presence of a defendant.” Fields v. Henry County, Tenn., 701 F.3d 180, 184 (6th Cir. 2012). This very point has been corroborated by the Alabama Legislature; in determining bail that the judicial officer feels “is sufficient to guarantee the appearance of the defendant[,] … amounts of bail may be set by a judicial officer in a standard bail schedule as prescribed by the judge or pursuant to the bail schedule promulgated by Supreme Court rule.” Ala. Code § 15-13-103. Indeed, the City of Clanton’s bail schedule

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was well within that proscribed by the ALABAMA RULES OF CRIMINAL PROCEDURE, which calls for bail of between $300 and $1,000 for municipal ordinance violations. Ala. R. Crim. P. 7.2.9 Having modeled its own bail schedule on that promulgated by the Alabama Supreme Court, the City of Clanton has clearly attempted to do nothing more than reasonably assure a defendant’s presence at future court proceedings.

Furthermore, bail schedules attempt to ensure that defendants charged with similar crimes are not given dissimilar bail amounts. See Stack v. Boyle, 342 U.S. 1, 5 (1951). They also “provide[] speedy and convenient release for those who have no difficulty in meeting its requirements.” Rainwater, 572 F.2d at 1057. In fact the en banc Court in Rainwater specifically upheld the constitutionality of Florida’s bail schedule. Id. at 1053. Thus, since bail schedules are not unconstitutional, but rather “aimed at assuring the presence of a defendant,” Fields, supra., the City of Clanton’s use of such a schedule – and one within the range proscribed by the Alabama Supreme Court in the Rules of Criminal Procedure – does not violate the Eighth Amendment, warranting dismissal of such claims made in the Plaintiff’s Complaint.

The Plaintiff’s Due Process Claims are Due to be Dismissed

9 “$300 was set as the lower limit in compliance with Ala. Code 1975, § 15-13-105, providing that ‘in violation and misdemeanor cases the minimum amount of bail shall be $300 for each offense charged.’” Ala. R. Crim. P. 7.2 Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 13 of 27

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The Due Process Clause of the Fourteenth Amendment provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Due Process Clause has been interpreted to have two components: procedural due process and substantive due process. Procedural due process ensures that the when government action deprives a person of life, liberty or property, it is done so in a fair manner. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Substantive due process prevents the government from infringing on “certain ‘fundamental’ liberty interests … unless the infringement is narrowly tailored to serve a compelling state interest,” Reno v. Flores, 507 U.S. 292, 302 (1993), such as “assuring the presence at trial of persons charged with crime.” Rainwater, 572 F.2d at 1056.

A. Substantive Due Process

As previously noted, n. 7, supra., no fundamental right to pretrial release on bond has been created by Supreme Court precedent.10 Rather, the Court is hesitant to create new fundamental rights. Substantive due process analysis must “begin with a careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’” Reno, supra., 507 U.S. at 302 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). Instead of attempting to break new

10 Rather, as also previously noted, the Supreme Court has held that there is no absolute right to bail. Salerno, 481 U.S. at 753. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 14 of 27

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ground, however, the Plaintiffs rights allegedly affected by the actions of the City of Clanton should be addressed via the Constitutional provisions specifically applicable to the allegations contained in this case, i.e. the Fourth and Eighth Amendments.

“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994)(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The Plaintiff has not challenged the lawfulness of her arrest under the Fourth Amendment. The only explicit Constitutional Amendment applicable to this case is, therefore, the Eighth Amendment and its prohibition on excessive bail. Because the bail schedule utilized by the City of Clanton was implemented as the most reasonable manner in which to assure a defendant’s presence at trial (see the immediately preceding section regarding Eighth Amendment Claims), it is not excessive under the Eighth Amendment. Since no fundamental or textual right has been violated by the City of Clanton, Plaintiff Varden suffered no infringement upon her substantive due process rights.

B. Procedural Due Process Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 15 of 27

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The Plaintiff has made no claims for violations of procedural due process. Even had she, they would be due to be dismissed because there is no right to speedy bail. See Collins v. Ainsworth, 382 F.3d 529, 545 (5th Cir. 2004)(“there is no right to post bail within 24 hours of arrest”); Woods v. City of Michigan City, 940 F.2d 275, 283 (7th Cir. 1991)(Will, D.J, concurring)(“nothing in the eighth amendment, however, guarantees instant release for misdemeanors or any other offense”). Furthermore, it is undisputed that Plaintiff Varden was released from the Chilton County Jail within 72 hours of her arrest and without having to post any form of surety bond. Quite clearly, then, had she brought any claims for procedural due process violations, they would have been properly subject to dismissal.

Plaintiff’s State Law Claims, if any, are Due to be Dismissed

The Plaintiff has failed to identify upon what theory she brings her claims under the law of the State of Alabama. Art. 1, § 16, of the Alabama Constitution of 1901 provides:

That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great; and that excessive bail shall not in any case be required.

The Plaintiff seems to argue that she should have a right to obtain bail without sufficient sureties, but that is not what the law requires. Rather, the law clearly Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 16 of 27

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allows for judicial officers to set bail in the amount they feel will reasonably assure the presence of criminal defendants in court.

Admission to bail is the order of a judicial officer of any court of the State of Alabama, or one of its subdivisions, that the defendant be discharged from actual custody on bail. Judicial officers of all courts in the State of Alabama shall see that every defendant arrested and in custody has an opportunity to give bail, in cases in which the defendant is entitled to bail and in cases pending before the court, and shall see that the amount of bail is established. The amount of bail shall be set in the amount that the judicial officer feels, in his or her discretion, is sufficient to guarantee the appearance of the defendant. Bail amounts shall not exceed the statutory limits otherwise set out in the laws of this state. The amounts of bail may be set by a judicial officer in a standard bail schedule as prescribed by the judge or pursuant to the bail schedule promulgated by Supreme Court rule.

Ala. Code § 15-13-103. As previously discussed, the bail schedule implemented by the Clanton Municipal Court was well within the parameters of the rules promulgated by the Alabama Supreme Court, i.e. Ala. R. Crim. P. 7.2. It was designed to sufficiently guarantee the appearance of a criminal defendant, and therefore fully complied with Alabama law.

Furthermore, Ms. Varden was released from the Custody of the Clanton Municipal Court within 72 hours of her arrest. Any challenges made by the Plaintiff pursuant to the Alabama Supreme Court’s holding in State v. Blake, 642 So.2d 959 (Ala. 1994)11, would be moot as Ms. Varden was released from custody

11 The Plaintiff desperately attempts to attribute implications to the Court’s holding in Blake that simply are not there. Blake struck down a provision of Article VII of the Bail Reform Act of 1993 which prevented an indigent criminal defendant from being released on judicial public bail less than three (3) days after his or her arrest. The provision mandated that an indigent defendant be held in jail for at least three days prior to even having an Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 17 of 27

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on charges in the Clanton Municipal Court within 72 hours of her arrest. This is so because, and only to the degree that Blake could even be construed as making bail review hearings mandatory within 72 hours of arrest, Plaintiff Varden was indisputably released from (the City of Clanton’s) custody within three days.

Plaintiff Varden has no Standing to Bring the Claims Alleged

The Plaintiff, Christy Varden, was arrested on four misdemeanor counts by the City of Clanton on January 13, 2015. Doc. 24, p. 1. She was thereafter, and related to this same incident on Jan. 13th, charged with two counts of assault in the Chilton County District Court. Id. Plaintiff Varden was held on criminal charges arising in the Clanton Municipal Court and in the Chilton County District Court at the Chilton County jail. Id., p. 1-2. After the filing of her Motion for a Temporary Restraining Order, she notes that she was “released from the City’s custody expeditiously.” Doc. 28, p. 2. However, upon her release from the City’s custody on its charges pending against her, it is undisputed that Plaintiff Varden was not released from the custody of Chilton County. Rather, she was unable to obtain her release from the Chilton County jail until someone listed as having the same address as the Plaintiff signed a property bond to secure her release. Doc. 24-2.

In order to establish standing to bring her claims in the Complaint, the Plaintiff must show “personal injury fairly traceable to the defendant’s allegedly

opportunity to be released. Blake, 642 So.2d at 966-68. Blake did not hold that keeping arrestees in jail due to claims of their inability to make bail violated the U.S. or State Constitutions. Rather it held that preventing courts from providing “judicial public bail” to indigent defendants within three days of their arrest did violate their rights and served no interest of the government. Id. at 967. Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 18 of 27

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unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). However, the Plaintiff’s claimed injuries in this case are more attributable to Chilton County than to the City of Clanton. Had the City of Clanton released the Plaintiff immediately upon her arrest on Jan. 13th, she still would have remained in jail until “Peggy Jones” signed a property bond to secure Plaintiff Varden’s release on January 16, 2015 at 3:34 PM.

Her release on Chilton County charges via one of the three methods available to the Plaintiff on the City of Clanton’s charges further shows her lack of standing to bring the claims alleged in her Complaint. Ms. Varden’s inability to obtain her release was not a result of her indigency, but rather her inability to have Ms. Jones execute a property bond more quickly. Thus, she has no standing to bring the claims alleged in this case. See, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1152 (2013)(finding that a plaintiff’s “self-inflicted injuries” could not be fairly traceable to the government’s purported activities). All of the Plaintiff’s claims in the Complaint are due to be dismissed on lack of standing to bring them.

The Complaint should be Dismissed Based upon Abstention Doctrines

Pursuant to the reasoning of the Eleventh Circuit in Pompey v. Broward County, 95 F.3d 1543, 1549 (11th Cir. 1996), this Court should abstain from exercising jurisdiction in this case. While in that case the issues were different – Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 19 of 27

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that court’s alleged failure to appoint counsel and to inquire into defendant’s ability to pay child support– the Court’s reasoning is applicable here:

[I]t appears that what the plaintiffs really want in this regard is for the district court somehow to force the state judges to conduct a more "thorough inquiry" into each parent's ability to pay, and somehow to force the state judges to follow what plaintiffs perceive to be the state's own laws and procedures.

Pompey v. Broward County, 95 F.3d 1543, 1549 (11th Cir. 1996). Based on the remedy sought, the Eleventh Circuit dismissed the case on abstention grounds. Id. at 1555 (dismissal of equitable claims against judges, mirroring dismissal against other defendants).

In this case, while the Plaintiff might argue that all that she is seeking is an order enjoining Clanton from using the Municipal Court’s bond schedule, the injunction she seeks is actually far more intrusive than that. She seeks to prevent Clanton’s municipal court judge from requiring any sort of bail, from making any independent determinations relative to alternative measures that might ensure a defendant’s appearance at court, and from otherwise exercising his proper judicial function. The City of Clanton may be the Defendant here, even if improperly so, but the Plaintiff seeks to have this Court usurp the authority of a judge of the Unified Judicial System of Alabama.

All First Amendment Claims are Due to Be Dismissed Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 20 of 27

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The Complaint alleges that the “City of Clanton requires that the courtroom be empty and closed to the public” and that uniformed City of Clanton Police Officers prevent the public from observing the “City’s judicial proceedings, which include arraignments, pleas, trials, revocation hearings, and other proceedings.” Doc. 1, p. 5-6. The Clanton Municipal Court does no such thing. Without question, though, the Court has taken measures to control its courtroom during court sessions in which well over 200 people could be in attendance. The Clanton courtroom can only accommodate so many people, and rather than permit the continuous distractions from the large number of people who were not currently called before the Court or who were not specifically interested in the case before the Court at that moment, it would sometimes cause people to be excluded.

The Complaint correctly notes that a video feed projects the events being conducted in the courtroom via a video monitor, but that no sound was previously available. The Clanton Municipal Court has since modified its video monitoring system such that the proceedings of the Court are now audible to persons waiting outside the courtroom.12 By providing audio and visual feeds of the events transpiring when the Clanton Municipal Court is in session, any requests for injunctive and/or declaratory relief under the First Amendment are now moot.

A. Plaintiff Varden Lacks Standing to Bring First Amendment Claims

12 An affidavit attesting to the fact that sound is now being projected into the waiting area outside the courtroom will be submitted shortly before this Court Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 21 of 27

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The Plaintiff has nowhere stated or alleged any injuries due to the claims in the Complaint brought for supposed First Amendment violations. To show standing, a Plaintiff must demonstrate “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, supra., 468 U.S. at 751. However the Plaintiff has not alleged any injuries due to the claims brought under the First Amendment. “A plaintiff is deemed to have suffered an injury in fact—‘an invasion of a judicially cognizable interest”—when he demonstrates a harm that is “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.’” Endlam v. Basham, 471 F.3d 1199, 1208 (11th Cir. 2006)(citing 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir.2003)). No such injury has even been alluded to by the Plaintiff in her Complaint, warranting dismissal of her claims.

Moreover, her claims brought pursuant to the First Amendment fail to comply with Federal pleading standards. A complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” in order to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 2009 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). Having failed to allege any facts at all showing that the Plaintiff suffered injuries pursuant to her claims of First Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 22 of 27

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Amendment Violations, which would therefore entitle her to relief, she has no standing and her claims are due to be dismissed.

B. The Plaintiff has Sued the Improper Party

Municipalities may only be sued under 42 U.S.C. § 1983 where the city or town has a policy or custom causing the injury of which a plaintiff is complaining. Monell, 436 U.S. at 694-5 (1978). “A policy is a decision that is officially adopted by the municipality, or created by an official of such rand that he or she could be said to be acting on behalf of the municipality.” Town of Lake Hamilton, 117 F.3d at 489. The Clanton Municipal Court is separate and distinct from, and wholly independent of, the City of Clanton. See discussion, supra., regarding the State Constitutional and Legislative authority for the powers granted to municipal courts. The City of Clanton has no control over the manner in which the Clanton Municipal Court conducts its operations. Thus, the City of Clanton “can never be liable under § 1983 for the acts of those [officials] whom the local government has no authority to control.” Grech v. Clayton County, Ga., 335 F.3d at 1331. All Claims made against the City of Clanton for supposed First Amendment violations are therefore due to be dismissed.

Conclusion Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 23 of 27

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The foregoing premises considered, the Defendant, the City of Clanton, would respectfully ask this Court to DISMISS the Complaint in this case. The City would further ask for any relief deemed appropriate under the circumstances.

AFFIRMATIVE DEFENSES

1. The Complaint fails to state a claim upon which relief can be granted.

2. The Complaint fails to state a claim upon which relief can be granted pursuant to 42 U.S.C. § 1983.

3. The Complaint fails to state a claim upon which relief can be granted under the Fourteenth Amendment.

4. The Complaint fails to state a claim upon which relief can be granted under the Eighth Amendment.

5. The Complaint fails to state a claim upon which relief can be granted under the First Amendment.

6. The Complaint fails to state a claim upon which relief can be granted under the laws of the State of Alabama.

7. The Complaints fails to state a claim upon which injunctive and/or declaratory relief can be sought.

8. The Defendant pleads all doctrines of immunity and privilege, including, but not limited to absolute judicial immunity and qualified immunity.

9. The Defendant pleads the general issue.

10. The Complaint fails to state a claim upon which relief can be granted pursuant to respondeat superior.

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11. Defendant contests the form and sufficiency of process and of service of process.

12. Defendant pleads the applicable statute of limitations and/or the doctrine of laches.

13. The Complaint fails to state a claim upon which relief can be granted in the form of compensatory damages.

14. The Complaint fails to state a claim upon which relief can be granted in the form of punitive damages.

15. The Complaint attempts to seek damages in excess of statutory limitations.

16. Defendant pleads all privileges, immunities, and statutory indemnification as provided in § 11-47-190, et seq., Code

17. Defendant pleads all forms and doctrines of waiver and estoppel including, but not limited to collateral estoppel, issue preclusion, and res judicata.

18. Plaintiff has failed to join necessary and indispensable parties to this action.

19. The Defendant’s police officers had ample probable cause to arrest the Plaintiff.

20. Plaintiff lacks standing to bring this cause of action.

21. Plaintiff’s claims are moot.

22. Plaintiff has failed to mitigate her damages.

23. Plaintiff has failed to do equity.

24. The Defendant pleads the doctrine of unclean hands.

25. That this Court is without jurisdiction over the parties and the claims.

26. Defendant denies that it is guilty of conduct referable to which punitive damages could or should be awarded, and denies that Plaintiff has produced Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 25 of 27

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clear and convincing evidence sufficient to support or sustain the imposition of punitive damages against Defendant.

27. The Defendants pleads the doctrine of prior independent intervening cause.

28. Defendant pleads lack of proximate causation.

29. Defendant did not do any of the acts or omissions alleged in the Complaint.

30. Defendant pleads not guilty.

31. Each and every action taken by Defendant was taken with the good faith belief that it was legal and lawful at the time so taken.

32. Defendant pleads offset.

33. Defendant reserves the right to amend or supplement its affirmative defenses to this action as litigation is still in its infancy.

Case 2:15-cv-00034-MHT-WC Document 36 Filed 03/03/15 Page 27 of 27

03/05/2015 37 (VACATED PURSUANT TO THE COURT'S 48 ORDER) ORDER directing that the motion to dismiss (doc. no. 36 ) is set for submission, without oral argument, on, April 9, 2015, with any opposition brief due by March 26, 2015, and any reply to the opposition due by April 9, 2015. Signed by Honorable Judge Myron H. Thompson on March 5, 2015. (scn, ) Modified on 3/27/2015 (kh, ). (Entered: 03/05/2015)



03/09/2015 38 SUGGESTION OF DEATH Upon the Record as to Christy Dawn Varden by Christy Dawn Varden. (Karakatsanis, Alec) (Entered: 03/09/2015)



03/09/2015 39 MOTION to Continue by The City of Clanton. (Kinney, Richard) (Entered: 03/09/2015)



03/09/2015 40 Supplement to the 39 MOTION to Continue Hearing, by The City of Clanton. (Attachments: # 1 Exhibit)(Kinney, Richard) Modified on 3/10/2015 to terminate erroneous motion, create relationship to 39 motion, and correct docket text pursuant to PDF document (scn, ). (Entered: 03/09/2015)

03/09/2015 NOTICE of Docket Text Correction re 40 Supplement to 39 Motion to Continue Hearing to reflect (a) termination of erroneous motion, (b) creation of relationship to 39 Motion, and (c) correction of docket text from MOTION to Supplement to Motion. (No PDF document attached to this entry.) (scn, ) (Entered: 03/10/2015)



03/10/2015 41 RESPONSE in Opposition re 39 MOTION to Continue filed by Christy Dawn Varden. (Karakatsanis, Alec) (Entered: 03/10/2015)

03/10/2015 Set Hearings: Telephone Conference re 38 Suggestion of Death set for 3/10/2015 02:45 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 03/10/2015)



03/10/2015 42 MOTION for Discovery [Expedited] by Christy Dawn Varden. (Karakatsanis, Alec) (Entered: 03/10/2015)



03/10/2015 43 RESPONSE to Motion re 42 MOTION for Discovery [Expedited] filed by The City of Clanton. (Kinney, Richard) (Entered: 03/10/2015)



03/10/2015 44 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 3/10/2015 (PDF available for court use only). (Recording Time 2:50 - 3:16.) (ag, ) (Entered: 03/10/2015)



03/11/2015 45 ORDER directing that: (1) The motion to continue (doc. no. 39 ) is granted; (2) The hearing on the motions for preliminary injunction (doc. no. 2 ) and for class certification (doc. no. 4 ) previously set for March 13, 2015, is reset for April 17, 2015, at 10 a.m. in Courtroom 2FMJ of the Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street, Montgomery, Alabama; (3) Should there be any changed circumstances before the hearing, each party shall, no later than five days before the hearing, file a brief with the court explaining those changes and the legal implications of said changes. Signed by Honorable Judge Myron H. Thompson on 03/11/2015. (Furnished to Calendar/AG) (scn, ) (Entered: 03/11/2015)



03/11/2015 46 SUGGESTION OF DEATH Upon the Record by The City of Clanton. (Holliday, Shannon) (Entered: 03/11/2015)



03/25/2015 47 Consent MOTION for Extension of Time to File Response/Reply by Christy Dawn Varden. (Karakatsanis, Alec) (Entered: 03/25/2015)



03/27/2015 48 ORDERED that: (1) The unopposed 47 motion for extension of time is granted. (2) The 37 submission order is vacated. (3) The 36 motion to dismiss is reset for submission, without oral argument, on May 11, 2015, with any opposition brief due by April 27, 2015, and any reply to the opposition due by May 11, 2015. Signed by Honorable Judge Myron H. Thompson on 3/27/2015. (kh, ) (Entered: 03/27/2015)



03/27/2015 49 MOTION to Substitute Party by Peggy Jones. (Attachments: # 1 Exhibit Exhibit 1: Letters of Administration)(Karakatsanis, Alec) (Entered: 03/27/2015)



03/31/2015 50 (STRICKEN AS ERRONEOUS DOCKET ENTRY ON 03/31/2015) MOTION for Protective Order by The City of Clanton. (Kinney, Richard) Modified on 3/31/2015 (scn, ). (Entered: 03/31/2015)



03/31/2015 51 MOTION for Protective Order unopposed by The City of Clanton. (Attachments: # 1 Exhibit)(Kinney, Richard) (Entered: 03/31/2015)



03/31/2015 52 NOTICE of FILING ERROR re 50 MOTION for Protective Order to reflect striking as erroneous docket entry. (scn, ) (Entered: 03/31/2015)



03/31/2015 53 PROTECTIVE ORDER granting 51 Motion for Protective Order, as further set out. Signed by Honorable Judge Wallace Capel, Jr on March 31, 2015. (scn, ) (Entered: 03/31/2015)



04/01/2015 54 ORDER directing that the motion to substitute plaintiff (doc. no. 49 ) is granted, and the

plaintiff is given leave to file an amended complaint substituting the new plaintiff within seven days of this order, as further set out. Signed by Honorable Judge Myron H. Thompson on April 1, 2015. (scn, ) (Entered: 04/01/2015)



04/03/2015 55 AMENDED COMPLAINT against The City of Clanton, filed by Peggy Jones. (Attachments: # 1 Exhibit Exhibit 1)(Karakatsanis, Alec) (Entered: 04/03/2015)

04/03/2015 ***Attorney Matthew Swerdlin, Joseph Mitchell McGuire, and William M Dawson, Jr for Peggy Jones added pursuant to 55 Amended Complaint. (scn, ) (Entered: 04/06/2015)



04/06/2015 56 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Peggy Jones. Corporate Disclosures due by 4/16/2015. (Attachments: # 1 Standing ORDER and sample format)(scn, ) (Entered: 04/06/2015)



04/06/2015 57 Corporate/Conflict Disclosure Statement by Peggy Jones re 56 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (McGuire, Joseph) (Entered: 04/06/2015)



04/08/2015 58 Joint MOTION to Continue Deadlines for Briefing and to Continue Preliminary Injunction and Class Certification Hearing by The City of Clanton, Peggy Jones, and Christy Dawn Varden. (Holliday, Shannon) Modified on 4/9/2015 to add joint filers pursuant to PDF document (scn, ). (Entered: 04/08/2015)



04/08/2015 59 RESPONSE in Opposition re 49 MOTION to Substitute Party filed by The City of Clanton. (Kinney, Richard) (Entered: 04/08/2015)



04/08/2015 60 REPLY to Response to Motion re 49 MOTION to Substitute Party filed by Peggy Jones. (Karakatsanis, Alec) (Entered: 04/08/2015)



04/08/2015 61 ORDER that: (1) The 58 Joint Motion to Continue is granted. (2) The hearing on the motions for preliminary injunction (doc. no. 2 ) and for class certification (doc. no. 4 ), previously set for 4/17/2015, is RESET for 5/18/2015 at 10:00 AM in Courtroom 2FMJ in Montgomery, AL before Honorable Judge Myron H. Thompson, with the previously ordered briefing (see doc. no. 45 ) due five days before the new date. Signed by Honorable Judge Myron H. Thompson on 4/8/2015. Copies furnished to calendar group, AG. (dmn, ) (Entered: 04/08/2015)



04/08/2015 62 ORDER: As the original complaint has been superseded by an amended complaint, it is ORDERED that the 36 Motion to Dismiss is denied with leave to renew within 21 days of the date of this order. Signed by Honorable Judge Myron H. Thompson on 4/8/2015. (dmn, ) (Entered: 04/08/2015)



04/09/2015 63 ORDER directing that the objection to motion for substitution (doc. no. 59 ) is overruled. Signed by Honorable Judge Myron H. Thompson on April 9, 2015. (scn, ) (Entered: 04/09/2015)



04/29/2015 64 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction by The City of Clanton. (Attachments: # 1 Affidavit Exhibit 1)(Kinney, Richard) (Entered: 04/29/2015)



05/06/2015 65 ORDER directing that the motion to dismiss (doc. no. 64 ) is set for oral argument on May 18, 2015, at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomery, Alabama, as further set out. Signed by Honorable Judge Myron H. Thompson on May 6, 2015. (Furnished to Calendar/AG) (scn, ) (Entered: 05/06/2015)



05/11/2015 66 BRIEF/MEMORANDUM in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction, 4 MOTION to Certify Class SHOWING CHANGED CIRCUMSTANCES filed by The City of Clanton. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Holliday, Shannon) (Entered: 05/11/2015)

05/13/2015 Set Hearings: Telephone Conference set for 5/13/2015 03:30 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 05/13/2015)



05/13/2015 67 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 5/13/2015 (PDF available for court use only). (Recording Time 3:37 - 3:41.) (ag, ) (Entered: 05/13/2015)



05/14/2015 68 ORDER directing as follows: (1) All pending motions are denied without prejudice; (2) All deadlines are suspended and all hearings are cancelled; (3) An on-the-record status conference is set for June 3, 2015, at 10:00 a.m. Counsel for the parties are to arrange for the conference to be conducted by telephone. Signed by Honorable Judge Myron H. Thompson on May 14, 2015. (Furnished to Calendar/AG) (Term'd: Motion hearing 05/18/2015) (scn, ) (Entered: 05/14/2015)



06/03/2015 69 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 6/3/2015 (PDF available for court use only). (Recording Time 10:13 - 10:23.) (ag, ) (Entered: 06/03/2015)



06/04/2015 70 ORDER directing as follows: (1) Another on-the-record status conference is set for July 1, 2015, at 10:00 a.m., as further set out; (2) On or before June 29, 2015, the parties are to file their settlement papers, as further set out. Signed by Honorable Judge Myron H. Thompson on June 4, 2015. (Furnished to Calendar/AG)(scn, ) (Entered: 06/04/2015)

06/29/2015 71 NOTICE of Settlement, by Peggy Jones and The City of Clanton re 70 Order. (Attachments: # 1 Exhibit 1 to Ex A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit A to Ex 3, # 6 Exhibit 1 to Ex A)(McGuire, Joseph) Modified on 6/30/2015 to clarify text and add joint filer pursuant to PDF document (scn, ). (Entered: 06/29/2015)



07/01/2015 72 Joint MOTION for Entry of Final Judgment as to All Matters Excluding Attorney's Fees by Peggy Jones and The City of Clanton. (Attachments: # 1 Exhibit A, # 2 Exhibit 1 to Ex. A)(McGuire, Joseph) Modified on

7/1/2015 to add joint filer and clarify text pursuant to PDF document (scn, ). (Entered: 07/01/2015)



07/01/2015 73 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 7/1/2015 (PDF available for court use only). (Recording Time 10:10 - 10:23.) (ag, ) (Entered: 07/01/2015)



07/20/2015 74 NOTICE by Peggy Jones of New Authority (Attachments: # 1 Exhibit Exhibit 1: Dothan TRO, # 2 Exhibit Exhibit 2: Velda City Judgment)(Karakatsanis, Alec) (Entered: 07/20/2015)